Recent news coverage reveals that Democrats in the Senate are split over the path they should take regarding rules governing the confirmation of federal judges.
Some Democratic senators take the position that they should pull back some changes in Senate rules that have disempowered the minority party or individual senators. Others think that the Democrats should stick with the new rules and use them to appoint as many federal judges as possible. This debate highlights the tensions in the Senate over judicial appointments.
The best way to defuse these tensions is to look back at a practice from an earlier, less polarized time: Senators of different parties from a state could agree to share judicial appointments, much as former Sens. Alphonse D’Amato (R-N.Y.) and Daniel Patrick Moynihan (D-N.Y.) did for nearly 20 years when they constituted New York’s Senate delegation during the final decades of the 20th century.
Historically, the availability of the filibuster empowered the minority Senate party. Under the filibuster, it took the vote of 60 senators to end debate on a judicial nominee, in order to tee up the final confirmation vote.
While senators rarely used, or even threatened to use, the filibuster in this context, the mere availability of the filibuster moderated a president’s judicial nominations and empowered Senate minorities: Choosing more extreme candidates raised the risk of the filibuster.
The practice of blue-slipping empowered a Senate to suspend consideration of candidacy of a judicial nominee (who, if confirmed, would have jurisdiction over all or part of the senator’s home state) if the senator did not return a slip (known as a blue slip) with respect to that nomination. Similar to the filibuster, the practice of blue-slipping moderated the president’s nominations and empowered individual senators.
Over the past decade, the protections offered by the filibuster and blue-slipping have been greatly reduced or eliminated. In late 2013, Senate Democrats voted to render the filibuster inapplicable for lower federal court nominations.
Later in the Obama administration, the Senate, now in Republican hands, declined to hold hearings on Supreme Court nominee Merrick Garland. Then, early in the Trump administration, unable to confirm Judge Neil Gorsuch to the Supreme Court in the face of the filibuster, the Republican Senate voted to eliminate the filibuster in the context of Supreme Court nominations. Sen. Chuck Grassley (R-Iowa), chair of the Judiciary Committee, also declined to recognize the power of individual senators to block confirmation votes through blue-slipping. Democrats have been divided over whether, when they regain power in the Senate, to reverse these changes or embrace them.
A path forward might be found by looking backward. For more than 20 years in the closing decades of the last century, the senators agreed to divide responsibility for recommending nominees to the president for federal district judgeships.
The senator of the same political party as the president would provide the White House with nominees for three-quarters of the openings on New York’s federal district courts, while the “out-of-party” senator would enjoy that privilege for the remaining one-quarter of openings.
This arrangement originated when Jimmy Carter was president, under Republican Sen. Jacob Javits (N.Y.) and Daniel Patrick Moynihan. When Sen. Alphonse D’Amato defeated Javits in the Republican primary and was elected to the Senate, when Ronald Reagan won the presidency, he promptly announced that he would continue the arrangement with Moynihan. Moynihan responded, “This is extremely gracious of Sen.-elect D’Amato, and I thank him.”
The arrangement continued for the next 18 years, for as long as Sens. D’Amato and Moynihan served together in the Senate. The arrangement survived the rare occasion when the president would refuse to nominate a name the out-of-state senator forwarded to him. Indeed, each senator promoted his colleague’s nominees. For example, D’Amato helped push through the confirmation of then-Judge Sonia Sotomayor to the U.S. Court of Appeals for the Second Circuit in the face of Republican opposition.
The senators and their arrangement for judgeships offer a model for how senators might forge bipartisan ties. They came from different backgrounds and they had different priorities, yet they came to get along very well (indeed, they were sometimes referred to as the Senate’s “Odd Couple”).
While neither senator had extreme political views, still they came from opposite sides of the political aisle (indeed, D’Amato ran against Sen. Javits in the part on the ground that he was more conservative, and Sen. Javits challenged D’Amato in the general election by running on the liberal line). They agreed that the appointment of high-quality federal judges as valuable for the state they represented.
Importantly, the arrangement for nomination of federal district judges enhanced the senators’ working relationship and personal relationship. Arrangements based upon the trailblazing relationship over federal district judgeships forged by Moynihan, and Javits and D’Amato, could provide a roadmap for reducing tensions and polarization in the Senate over judicial appointments — and beyond.
Jonathan R. Nash is the Robert Howell Hall professor of law at Emory University School of Law and director of the Emory Center for Law and Social Science. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. He has published “Interparty Judicial Appointments” on the arrangement developed by Sens. D’Amato, Javits and Moynihan. Follow him on Twitter at @JonathanRNash.